A Constitutional Crisis? Maybe. A Constitutional Revolution? Likely.

When do we know if our nation is experiencing a constitutional crisis?  With increasing frequency this question is being raised by people who fear their nation has reached that watershed moment when constitutional order can no longer be taken for granted.  An oft-heard answer, which is also the most cogently argued, is that the crisis will have arrived when power holders in government decline to obey court rulings that require them to terminate actions found to be illegal and unconstitutional.  For others, just the belief that necessary things are no longer possible to achieve within the existing constitutional order will confirm the onset of a crisis.

Crisis rhetoric has become pervasive in the United States and Israel, although much of it is a hyperbolic response to the polarization currently dominating these nations’ politics.  What seems clearer to us is that a process is underway in both countries that may very well culminate in a constitutional revolution.  Such a development might or might not be deemed crisis-worthy, but it would mean that something profoundly significant had changed in the way the business of governing is conducted in each nation.

A Constitutional Revolution: What’s That?

A substantial reorientation in constitutional practice and understanding often proceeds incrementally, without the decisive rupture or violent usurpation usually associated with generic revolutionary activity.  With respect to radical transformations of the constitutional variety, a revolution can be said to exist when we are confronted with a radical displacement in the way constitutionalism is experienced in a given polity.  Such transformations can occur in a variety of ways.  They may be sanctioned by the authority of a previous constitutional order, as happened in Hungary, South Africa, and Chile; or secured through the use of the amendment power, as exemplified by the post-Civil War amendments in the United States; or engineered through the interpretive power and reach of a court of law, as illustrated by prominent instances in Israel and Colombia.  While the legality of the subsequent constitutional reorientations may be credibly affirmed, the resulting change in the nation’s constitutional identity can, as occurred in Viktor Orban’s Hungary, install a regime hostile to the rule of law.

The American Accretion of Executive Power

To what extent are the efforts by the Trump administration to extend the boundaries of executive power indicative of a constitutional revolution?  The answer hinges largely on how the judiciary – ultimately the Supreme Court – responds to controversial presidential acts whose legality have been called into question.  President Trump’s incendiary assertion, “He who saves his Country does not violate any law,” signals that the door is opening to a radical and contra-legal departure from the American tradition of constitutionalism.  Yet, to date at least, he insists that all of his actions are perfectly legal, and he is challenging the courts to say otherwise.  Should they agree with his most extravagant claims, then we will have gone far down the path of a constitutional revolution.

Were this to come to pass it would entail constitutionalizing the fiercest version of the so-called unitary executive theory.  The original founding commitment to a division of national power among three equal branches of government would be replaced by a quasi-monarchical system lacking meaningful sources of checking and balancing authority.  And with the Supreme Court having already held that the president has broad civil and criminal immunity for any official acts undertaken pursuant to his constitutional powers, the adoption of this theory would underscore the reality of a radically transformed concept of constitutionalism.

Equally concerning is the acquiescence of the Congress in this revolutionary makeover.  In the face of assorted governmental funding pauses, including allocations for foreign aid, the legislative power of the purse appears hardly worth defending.  The Court may have the last word on this quiescent abdication, as it will for the other tacit acceptances of the extreme unitary executive theory; a list that includes the dismantling of the U.S. Agency for International Development, the effective closing of the Consumer Protection Bureau, the firing of as many as eighteen inspectors general, the dismissal of countless legally protected civil service employees across the federal work force, the non-enforcement of a law passed by Congress barring Tik Tok from operating in the United States, and the closing of the southern border to asylum seekers.  If, under the banner of the unitary executive theory, these usurpations of legislative authority are upheld, an entirely “lawful” constitutional revolution will have occurred.  If they are struck down and then unheeded by the president, we will surely, in addition, have entered constitutional crisis territory.

Israeli Parallels

Israel last experienced a constitutional revolution in the mid-1990’s when a combination of legislative and judicial action reconfigured the political system, transforming a regime of parliamentary sovereignty into a constitutional democracy.  The question presently confronting Israelis is whether a counter constitutional revolution that reverses the transformation will succeed, or worse, culminate in an autocratic form of governance.  Prime Minister Netanyahu, like his counterpart in the United States, has an interest in circumventing a criminal process that has been mobilized against him; similar too is his interest in denigrating the civil service work force.  In a recent speech in the Knesset he maintained that the country is controlled by a “deep state.”  In an observation that echoes the American president, he declared, “There’s no democracy here, but a government of bureaucrats and jurists.” And, in a post on the official Prime Minister of Israel account from March 19, 2025 (later deleted), Netanyahu made a direct comparison to the United States: “In America and in Israel, when a strong right wing leader wins an election, the leftist Deep State weaponizes the justice system to thwart the people’s will. They won’t win in either place! We stand strong together.”

The effort by the government in early 2023 to overhaul the judiciary was hindered by a persistent and unrelenting civil protest movement and a landmark ruling by the Supreme Court.  The October 7 attack on Israel and the war in Gaza that followed led to the formal suspension of the judicial overhaul. The formation of an emergency government that included centrist elements led many to believe that the government would abandon its plans to undo the structure of constitutional checks and balances, that pursuing its obsessive pre-war preoccupation with the judiciary would interfere with the pressing need to achieve security and enable the return of hostages.  Under the fog of war, however, with public attention no longer focused on constitutional revolution issues, the effort to radically transfigure the Court’s authority continued.

The government’s assault on the institutional capacity to check its power centered on the judiciary, but also the office of Attorney General. Having already enacted a law that provides the coalition control over the selection of the Ombudsman for Judges, it is moving forward with a constitutional amendment that would change the judicial selection committee in a manner that could completely politicize the judiciary. Alongside this effort, which is being pursued in blatant disregard for the views of the recently appointed President of the Supreme Court, the Minister of Justice has initiated a process to remove the Attorney General from office, the person who just happens to be conducting the prosecution of the Prime Minister, Netanyahu is attempting the removal from office of the head of Israel’s domestic intelligence agency (“Shin Bet”) – while being in a conflict of interest – as officials in the prime minister’s office are being investigated by the same agency for connections to Qatar. All of this is part of the broad effort to capture independent institutions and gatekeepers that might block governmental power.

For the first time in over fifty years, the V-Dem Institute used its 2024 annual global democracy index report to downgrade Israel from its top-tier “liberal democracy” categorization to an “electoral democracy.”  One thinks in this regard of Viktor Orban’s proud re-labelling of his revolutionary achievement in Hungary as an “illiberal democracy.”  To the degree that this threat to Israel’s democratic character continues and succeeds, Israel will undergo yet another constitutional revolution. Yet unlike its precursor in the 1990’s, this displacement in the way constitutionalism is experienced is likely to culminate in some version of autocratic rule.  Much like what is happening in the United States, the constitutional revolution proceeds apace.